[2023] KECPT 407 (KLR)

Universal Traders Sacco Ltd v Mulinge (Tribunal Case 64 of 2019) [2023] KECPT 407 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 407 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 64 of 2019

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

April 27, 2023

Between

Universal Traders Sacco Ltd

Claimant

and

Cecilia N Mulinge

Respondent

Ruling

1. The Claimant filed the claim vide a Statement of Claim dated January 30, 2019 and filed on February 13, 2019. The claim was for the sum of Kshs 447,304. 81 plus interest on account of loan facilities advanced to the Respondent by the Claimant on or about May 10, 2011 and November 16, 2012.

2. The Claimant made a request for judgment dated April 4, 2019 and filed on April 12, 2019. The request was for Interlocutory Judgment against the Respondent for failure to enter appearance though duly served. The Claimant requested for interlocutory in terms of the prayers in the Statement of Claim. The request of judgment was based on the Affidavit of Service sworn by Jacob Mueke Muthenya a Court Process Server, sworn on April 1, 2019. In the said Affidavit of Service, the deponent states that on March 20, 2019 he was instructed by the Claimant’s advocates to effect service of the Statement of Claim, Summons to enter into appearance and the other documents upon the Respondent whom he was called on her phone number xxxx and she agreed to meet him at the Claimant’s advocates office on the same day. The process server stated further that Respondent arrived at the Claimant’s advocates office where he effected service upon her but she declined to sign his copy.

3. The court entered judgment of May 18, 2019 for Kshs 447,304. 80 plus costs and interests. A decree and certificate of cost dated January 25, 2021 is on record as issued.

Application. 4. The Respondent/Applicant on August 13, 2021 filed under a Certificate of Urgency; a Notice of Motion application dated on August 13, 2021 in which she prayed for orders:i.That the matter be certified as urgent.ii.That there be a stay of execution of judgment and decree pending the hearing of this application.iii.That the court set aside the judgment and decree issued on June 30, 2020 and January 25, 2021 respectively.iv.That the applicant be granted leave to file a statement of defensev.Costs be provided for.

5. The application is supported by an affidavit by the Respondent/Applicant and on the grounds set out thereunder. In the grounds, the Claimants Advocates states that the Respondent/Applicant was never served with the Notice of Entry to enter judgment, though they admit that the claimant have been served, instructed the firm of Nzaku & Nzaku Advocates to enter appearance and file defense but the said firm only filed a memorandum of appearance. The default is therefore blamed on the advocate. In the Supporting Affidavit of the Respondent/Applicant sworn on August 13, 2021 and filed on August 13, 2021, we note that the Claimant replicates the grounds of the application, insisting that though her advocate filed a Memorandum of Appearance, the said advocate was not engaged in the proceedings which led to the judgment. We note however, that the Respondent/Applicant did not annex the said Memorandum of Appearance which is said to be annexture‘ennm-1’ in her affidavit.

6. The Respondent/Claimant further states in her affidavit that she was always in constant communication with the Respondent before becoming aware of the judgment but she has not annexed any document to demonstrate the same. The Claimant also states that she was not served with the notice of entry of judgment and she learnt about the judgment when she received a call from the Claimant’s advocate demanding for the judgement amount.The Respondent averred in her said Affidavit that the oversight on the part of her then advocates should not be visited on her. She annexed her draft Defence to her affidavit.

Replying Affidavit 7. The Respondent has opposed the Claimant’s application by way of a Replying Affidavit sworn by one Dominic Mutunga on October 18, 2021 and filed on November 9, 2021. In the said Replying affidavit the Respondent through the deponent who is its Chief Executive Officer states that the Respondent/Applicant took up Sacco loans which she failed to pay despite reminders and multiple calls to settle the same out of court and she was eventually served with a demand letter dated February 28, 2019 and that even after the suit was filed and she was served with summons and pleadings, she willingly failed to enter appearance and file Defence.

8. Having read the Respondent’s application and the Supporting Affidavit thereof and having read the Replying Affidavit of the Claimant and further having read the submissions of both parties we have arrived at the following conclusions;1. On the issue of service:a.That the Respondent/Applicant was duly and properly served with the Claimant’s pleadings and the summons to enter appearance.b.That there was no memorandum of appearance filed by the firm of Nzaku & Nzaku Advocates on behalf of the Respondent/Applicant as alleged by the applicant in her supporting affidavit.2. On the issue of setting aside the judgment:a.On ground of oversight on the part of the advocate: Having found that the firm of Nzaku & Nzaku Advocates did not file any memorandum of appearance and Defence, the said law firm had therefore no role to play in the suit. The Respondent/Applicant cannot then place any blame on the said law firm hence the judgment cannot be set aside on this ground as there’s no advocate to blame.b.On ground of the claim that the draft statement of Defence raises triable issues: We have perused and considered the draft statement of Defence annexed to the supporting affidavit of the Applicant and find that the same fails to address the issues raised in the statement of claim, in fact the same raises extraneous issues which do not relate to the loan. The Defence therefore fails to raise triable issues and the judgment cannot be ser aside on that ground.c.On whether the notice of entry of judgment or application and other documents were served; The law and the principles on which the Tribunal can rely on to set aside the default judgment is very clear. The above assertions are not material matters for consideration in arriving at its decision and we therefore disregard the same.

Court Decision 9. We find that the Respondent/Applicant has not convinced us to exercise our discretion herein and we therefore decline to set aside the default judgment herein. The application is thus dismissed with costs. Application dated August 13, 2021 is not merited and the same dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOL MEMBER SIGNED 27. 4.2023TRIBUNAL CLERK JONAHNo appearance by parties.Ruling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023